Delegation of Legislative Power
DELEGATION OF LEGISLATIVE POWER
The History of the Doctrine of Nondelegability
The Supreme Court has sometimes declared categorically that the legislative power of Congress cannot be delegated,51 and on other occasions has recognized more forthrightly, as Chief Justice Marshall did in 1825, that, although Congress may not delegate powers that are strictly and exclusively legislative, it may delegate powers which [it] may rightfully exercise itself.52 The categorical statement has never been literally true, the Court having upheld the delegation at issue in the very case in which the statement was made.53 The Court has long recognized that administra- tion of the law requires exercise of discretion,54 and that in our increasingly complex society, replete with ever changing and more technical problems, Congress simply cannot do its job absent an ability to delegate power under broad general directives.55 The real issue is where to draw the line. Chief Justice Marshall recognized that there is some difficulty in discerning the exact limits, and that the precise boundary of this power is a subject of delicate and difficult inquiry, into which a court will not enter unnecessarily.56 Accordingly, the Court’s solution has been to reject delegation challenges in all but the most extreme cases, and to accept delegations of vast powers to the President or to administrative agencies.
53 The Court in Shreveport Grain & Elevator upheld a delegation of authority to the FDA to allow reasonable variations, tolerances, and exemptions from misbranding prohibitions that were backed by criminal penalties. It was not open to reasonable dispute that such a delegation was permissible to fill in details impracticable for Congress to prescribe.
54 J. W. Hampton, Jr. & Co. v. United States, 276 U.S. 394, 406 (1928) (In determining what [Congress] may do in seeking assistance from another branch, the extent and character of that assistance must be fixed according to common sense and the inherent necessities of the government co-ordination).
55 Mistretta v. United States, 488 U.S. 361, 372 (1989). See also Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381, 398 (1940) (Delegation by Congress has long been recognized as necessary in order that the exertion of legislative power does not become a futility).
56 Wayman v. Southard, 23 U.S. (10 Wheat.) at 42. For particularly useful discussions of delegations, see 1 K. DAVIS, ADMINISTRATIVE LAW TREATISE Ch. 3 (2d ed., 1978); L. JAFFE, JUDICIAL CONTROL OF ADMINISTRATIVE ACTION ch. 2 (1965).
With the exception of a brief period in the 1930’s when the Court was striking down New Deal legislation on a variety of grounds, the Court has consistently upheld grants of authority that have been challenged as invalid delegations of legislative power.
The modern doctrine may be traced to the 1928 case J. W. Hampton, Jr. & Co. v. United States, in which the Court, speaking through Chief Justice Taft, upheld Congress’ delegation to the President of the authority to set tariff rates that would equalize production costs in the United States and competing countries.57 Although formally invoking the contingency theory, the Court’s opinion also looked forward, emphasizing that in seeking the cooperation of another branch Congress was restrained only according to common sense and the inherent necessities of the situation.58 This vague statement was elaborated somewhat in the statement that the Court would sustain delegations whenever Congress provided an intelligible principle to which the President or an agency must conform.59chanrobles-red
57 276 U.S. 394 (1928).
58 276 U.S. at 406.
59 276 U.S. at 409. The intelligible principle test of Hampton is the same as the legislative standards test of A. L. A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 530 (1935), and Panama Refining Co. v. Ryan, 293 U.S. 388, 421 (1935).
As characterized by the Court, the delegations struck down in 1935 in the Panama Refining60 and Schechter61 cases were not only broad but unprecedented. Both cases involved provisions of the National Industrial Recovery Act. At issue in Panama Refining was a delegation to the President of authority to prohibit interstate transportation of what was known as hot oil – oil produced in excess of quotas set by state law. The problem was that the Act provided no guidance to the President in determining whether or when to exercise this authority, and required no finding by the President as a condition of exercise of the authority. Congress declared no policy, . . . established no standard, [and] laid down no rule, but rather left the matter to the President without standard or rule, to be dealt with as he pleased.62 At issue in Schechter was a delegation to the President of authority to promulgate codes of fair competition that could be drawn up by industry groups or prescribed by the President on his own initiative. The codes were required to implement the policies of the Act, but those policies were so general as to be nothing more than an endorsement of whatever might be thought to promote the recovery and expansion of the particular trade or industry. The President’s authority to approve, condition, or adopt codes on his own initiative was similarly devoid of meaningful standards, and virtually unfettered.63 This broad delegation was without precedent. The Act supplied no standards for any trade or industry group, and, unlike other broad delegations that had been upheld, did not set policies that could be implemented by an administrative agency required to follow appropriate administrative procedure. Instead of prescribing rules of conduct, [the Act] authorize[d] the making of codes to prescribe them.64
Since 1935, the Court has not struck down a delegation to an administrative agency.65 Rather, the Court has approved, without deviation, Congress’ ability to delegate power under broad standards.66 The Court has upheld, for example, delegations to administrative agencies to determine excessive profits during wartime,67 to determine unfair and inequitable distribution of voting power among securities holders,68 to fix fair and equitable commodities prices,69 to determine just and reasonable rates,70 and to regulate broadcast licensing as the public interest, convenience, or necessity require.71 During all this time the Court has not seen fit ... to enlarge in the slightest [the] relatively narrow holdings of Panama Refining and Schechter.72 Again and again, the Court has distinguished the two cases, sometimes by finding adequate standards in the challenged statute,73 sometimes by contrasting the vast scope of the power delegated by the National Industrial Recovery Act,74 and sometimes by pointing to required administrative findings and procedures that were absent in the NIRA.75 The Court has also relied on the constitutional doubt principle of statutory construction to narrow interpretations of statutes that, interpreted broadly, might have presented delegation issues.76chanrobles-red
60 Panama Refining Co. v. Ryan, 293 U.S. 388 (1935).
61 A. L. A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935).
62 293 U.S. at 430, 418, respectively. Similarly, the executive order exercising the authority contained no finding or other explanation by which the legality of the action could be tested. Id. at 431-33.
63 295 U.S. at 542.
64 295 U.S. at 541. Other concerns were that the industrial codes were backed by criminal sanction, and that regulatory power was delegated to private individuals. See Mistretta v. United States, 488 U.S. 361, 373 n.7 (1989).
65 A year later, the Court invalidated the Bituminous Coal Conservation Act on delegation grounds, but that delegation was to private entities. Carter v. Carter Coal Co., 298 U.S. 238 (1936).
67 Lichter v. United States, 334 U.S. 742 (1948).
68 American Power & Light Co. v. SEC, 329 U.S. 90 (1946).
69 Yakus v. United States, 321 U.S. 414 (1944).
70 FPC v. Hope Natural Gas Co., 320 U.S. 591 (1944).
71 National Broadcasting Co. v. United States, 319 U.S. 190 (1943).
74 See, e.g., Fahey v. Mallonee, 332 U.S. 245, 250 (1947) (contrasting the delegation to deal with unprecedented economic problems of varied industries with the delegation of authority to deal with problems of the banking industry, where there was accumulated experience derived from long regulation and close supervision); Whitman v. American Trucking Ass’ns, 531 U.S. 457, 474 (2001) (the NIRA conferred authority to regulate the entire economy on the basis of no more precise a standard than stimulating the economy by assuring ‘fair competition’).
75 See, e.g., Yakus v. United States, 321 U.S. 414, 424-25 (1944) (Schechter involved delegation not to a public official . . . but to private individuals; it suffices if Congress has sufficiently marked the field within which an administrator may act so it may be known whether he has kept within it in compliance with the legislative will.)
Concerns in the scholarly literature with respect to the scope of the delegation doctrine77 have been reflected in the opinions of some of the Justices.78 Nonetheless, the Court’s decisions continue to approve very broad delegations,79 and the practice will likely remain settled.
The fact that the Court has gone so long without holding a statute to be an invalid delegation does not mean that the nondelegation doctrine is a dead letter. The long list of rejected challenges does suggest, however, that the doctrine applies only to standardless delegations of the most sweeping nature.
76 See, e.g., Industrial Union Dep’t v. American Petroleum Inst., 448 U.S. 607, 645-46 (1980) (plurality opinion) (invalidating an occupational safety and health regulation, and observing that the statute should not be interpreted to authorize enforcement of a standard that is not based on an understandable quantification of risk); National Cable Television Ass’n v. United States, 415 U.S. 336, 342 (1974) (hurdles revealed in [Schechter and J. W. Hampton, Jr. & Co. v. United States] lead us to read the Act narrowly to avoid constitutional problems).
77 E.g., A Symposium on Administrative Law: Part I - Delegation of Powers to Administrative Agencies, 36 AMER. U. L. REV. 295 (1987); Schoenbrod, The Delegation Doctrine: Could the Court Give It Substance?, 83 MICH. L. REV. 1223 (1985); Aranson, Gellhorn & Robinson, A Theory of Legislative Delegation, 68 CORN. L. REV. 1 (1982).78 American Textile Mfrs. Inst. v. Donovan, 452 U.S. 490, 543 (1981) (Chief Justice Burger dissenting); Industrial Union Dep’t v. American Petroleum Inst., 448 U.S. 607, 671 (1980) (then-Justice Rehnquist concurring). See also United States v. Midwest Video Corp., 406 U.S. 649, 675, 677 (1972) (Chief Justice Burger concurring, Justice Douglas dissenting); Arizona v. California, 373 U.S. 546, 625–26 (1963) (Justice Harlan dissenting in part). Occasionally, statutes are narrowly construed, purportedly to avoid constitutional problems with delegations. E.g., Industrial Union Dep’t, 448 U.S. at 645–46 (plurality opinion); National Cable Television Ass’n v. United States, 415 U.S. 336, 342 (1974).
79 E.g., Mistretta v. United States, 488 U.S. 361, 371–79 (1989). See also Skinner v. Mid-America Pipeline Co., 490 U.S. 212, 220–24 (1989); Touby v. United States, 500 U.S. 160, 164–68 (1991); Whitman v. American Trucking Ass’ns, 531 U.S. 547 (2001). While expressing considerable reservations about the scope of delegations, Justice Scalia, in Mistretta, 488 U.S. at 415–16, conceded both the inevitability of delegations and the inability of the courts to police them.
Notice Clinton v. City of New York, 524 U.S. 417 (1998), in which the Court struck down the Line Item Veto Act, intended by Congress to be a delegation to the President, finding that the authority conferred on the President was legislative power, not executive power, which failed because the presentment clause had not and could not have been complied with. The dissenting Justices argued that the law was properly treated as a delegation and was clearly constitutional. Id. at 453 (Justice Scalia concurring in part and dissenting in part), 469 (Justice Breyer dissenting).
The Nature and Scope of Permissible Delegations
Application of two distinct constitutional principles contributed to the development of the nondelegation doctrine: separation of powers and due process. A rigid application of separation of powers would prevent the lawmaking branch from divesting itself of any of its power and conferring it on one of the other branches. But the doctrine is not so rigidly applied as to prevent conferral of significant authority on the executive branch.80 In J. W. Hampton, Jr. & Co. v. United States,81 Chief Justice Taft explained the doctrine’s import in the delegation context. The Federal Constitution . . . divide[s] the governmental power into three branches.... [I]n carrying out that constitutional division . . . it is a breach of the National fundamental law if Congress gives up its legislative power and transfers it to the President, or to the Judicial branch, or if by law it attempts to invest itself or its members with either executive power or judicial power. This is not to say that the three branches are not co-ordinate parts of one government and that each in the field of its duties may not invoke the action of the two other branches in so far as the action invoked shall not be an assumption of the constitutional field of action of another branch. In determining what it may do in seeking assistance from another branch, the extent and character of that assistance must be fixed according to common sense and the inherent necessities of the governmental co-ordination.82chanrobles-red
82 Chief Justice Taft traced the separation of powers doctrine to the maxim delegata potestas non potest delegari (a delegated power may not be delegated), 276 U.S. at 405, but the maxim does not help differentiate between permissible and impermissible delegations, and Court has not repeated this reference in later delegation cases.
In Loving v. United States,83 the Court distinguished between its usual separation-of-powers doctrine—emphasizing arrogation of power by a branch and impairment of another branch’s ability to carry out its functions—and the delegation doctrine, another branch of our separation of powers jurisdiction, which is informed not by the arrogation and impairment analyses but solely by the provision of standards.84 This confirmed what had long been evident – that the delegation doctrine is unmoored to traditional separation-of-powers principles.
The second principle underlying delegation law is a due process conception that undergirds delegations to administrative agencies. The Court has contrasted the delegation of authority to a public agency, which typically is required to follow established procedures in building a public record to explain its decisions and to enable a reviewing court to determine whether the agency has stayed within its ambit and complied with the legislative mandate, with delegations to private entities, which typically are not required to adhere to such procedural safeguards.85
Two theories suggested themselves to the early Court to justify the results of sustaining delegations. The Chief Justice alluded to the first in Wayman v. Southard.86 He distinguished between important subjects, which must be entirely regulated by the legislature itself, and subjects of less interest, in which a general provision may be made, and power given to those who are to act under such general provisions, to fill up the details. While his distinction may be lost, the theory of the power to fill up the details remains current. A second theory, formulated even earlier, is that Congress may legislate contingently, leaving to others the task of ascertaining the facts that bring its declared policy into operation.87chanrobles-red
83 517 U.S. 748 (1996).
84 517 U.S. at 758–59.
85 Carter v. Carter Coal Co., 298 U.S. 238, 310–12 (1936); Yakus v. United States, 321 U.S. 414, 424-25 (1944). Since the separation-of-powers doctrine is inapplicable to the States as a requirement of federal constitutional law, Dreyer v. Illinois, 187 U.S. 71, 83–84 (1902), it is the due process clause to which federal courts must look for authority to review delegations by state legislatures. See, e.g., Eubank v. City of Richmond, 226 U.S. 137 (1912); Embree v. Kansas City Road Dist., 240 U.S. 242 (1916).
87 The Brig Aurora, 11 U.S. (7 Cr.) 382 (1813).
Filling Up the Details.—In finding a power to fill up the details, the Court in Wayman v. Southard88 rejected the contention that Congress had unconstitutionally delegated power to the federal courts to establish rules of practice.89 Chief Justice Marshall agreed that the rule-making power was a legislative function and that Congress could have formulated the rules itself, but he denied that the delegation was impermissible. Since then, of course, Congress has authorized the Supreme Court to prescribe rules of procedure for the lower federal courts.90
Filling up the details of statutes has long been the standard. For example, the Court upheld a statute requiring the manufacturers of oleomargarine to have their packages marked, stamped and branded as the Commissioner of Internal Revenue . . . shall prescribe, rejecting a contention that the prosecution was not for violation of law but for violation of a regulation.91 The criminal of-fence, said Chief Justice Fuller, is fully and completely defined by the act and the designation by the Commissioner of the particular marks and brands to be used was a mere matter of detail.92
Kollock was not the first such case,93 and it was followed by a multitude of delegations that the Court sustained. In one such case, for example, the Court upheld an act directing the Secretary of the Treasury to promulgate minimum standards of quality and purity for tea imported into the United States.94chanrobles-red
88 23 U.S. (10 Wheat.) 1 (1825).
89 Act of May 8, 1792, § 2, 1 Stat. 275, 276.
90 The power to promulgate rules of civil procedure was conferred by the Act of June 19, 1934, 48 Stat. 1064; the power to promulgate rules of criminal procedure was conferred by the Act of June 29, 1940, 54 Stat. 688. These authorities are now subsumed under 28 U.S.C. § 2072. In both instances Congress provided for submission of the rules to it, presumably reserving the power to change or to veto the rules. Additionally, Congress has occasionally legislated rules itself. See, e.g., 82 Stat. 197 (1968), 18 U.S.C. §§ 3501–02 (admissibility of confessions in federal courts).
91 In re Kollock, 165 U.S. 526 (1897).
92 165 U.S. at 533.
94 Buttfield v. Stranahan, 192 U.S. 470 (1904). See also United States v. Grimaud, 220 U.S. 506 (1911) (upholding act authorizing executive officials to make rules governing use of forest reservations); ICC v. Goodrich Transit Co., 224 U.S. 194 (1912) (upholding delegation to prescribe methods of accounting for carriers in interstate commerce).
Contingent Legislation.—An entirely different problem arises when, instead of directing another department of government to apply a general statute to individual cases, or to supplement it by detailed regulation, Congress commands that a previously enacted statute be revived, suspended, or modified, or that a new rule be put into operation, upon the finding of certain facts by an executive or administrative officer. Since the delegated function in such cases is not that of filling up the details of a statute, authority for it must be sought under some other theory.
Contingent delegation was approved in an early case, The Brig Aurora,95 upholding the revival of a law upon the issuance of a presidential proclamation. After previous restraints on British shipping had lapsed, Congress passed a new law stating that those restrictions should be renewed in the event the President found and proclaimed that France had abandoned certain practices that violated the neutral commerce of the United States. To the objection that this was an invalid delegation of legislative power, the Court answered briefly that we can see no sufficient reason, why the legislature should not exercise its discretion in reviving the act of March 1st, 1809, either expressly or conditionally, as their judgment should direct.96
The theory was utilized again in Field v. Clark,97 where the Tariff Act of 1890 was assailed as unconstitutional because it directed the President to suspend the free importation of enumerated commodities for such time as he shall deem just if he found that other countries imposed upon agricultural or other products of the United States duties or other exactions, which he may deem to be reciprocally unequal and unjust. In sustaining this statute the Court relied heavily upon two factors: (1) legislative precedents, which demonstrated that in the judgment of the legislative branch of the government, it is often desirable, if not essential, . . . to invest the President with large discretion in matters arising out of the execution of statutes relating to trade and commerce with other nations;98 (2) that the act did not, in any real sense, invest the President with the power of legislation.... Congress itself prescribed, in advance, the duties to be levied, . . . while the suspension lasted. Nothing involving the expediency or the just operation of such legislation was left to the determination of the President.... He had no discretion in the premises except in respect to the duration of the suspension so ordered.99 By similar reasoning, the Court sustained the flexible provisions of the Tariff Act of 1922 whereby duties were increased or decreased to reflect differences in cost of production at home and abroad, as such differences were ascertained and proclaimed by the President.100chanrobles-red
95 11 U.S. (7 Cr.) 382 (1813).
96 11 U.S. (7 Cr.) at 388.
97 143 U.S. 649 (1892).
98 143 U.S. at 691.
99 143 U.S. at 692, 693.
100 J. W. Hampton, Jr. & Co. v. United States, 276 U.S. 394 (1928).
Standards.—Implicit in the concept of filling in the details is the idea that there is some intelligible guiding principle or framework to apply. Indeed, the requirement that Congress set forth intelligible principles or standards to guide as well as limit the agency or official in the performance of its assigned task has been critical to the Court’s acceptance of legislative delegations. In theory, the requirement of standards serves two purposes: it insures that the fundamental policy decisions in our society will be made not by an appointed official but by the body immediately responsible to the people, [and] it prevents judicial review from becoming merely an exercise at large by providing the courts with some measure against which to judge the official action that has been challenged.101
The only two instances in which the Court has found an unconstitutional delegation to a public entity have involved grants of discretion that the Court found to be unbounded, hence standardless. Thus, in Panama Refining Co. v. Ryan,102 the President was authorized to prohibit the shipment in interstate commerce of hot oil—oil produced in excess of state quotas. Nowhere – not in the language conferring the authority, nor in the declaration of policy, nor in any other provision – did the statute specify a policy to guide the President in determining when and under what circumstances to exercise the power.103 While the scope of granted authority in Panama Refining was narrow, the grant in A.L.A. Schechter Poultry Corp. v. United States104 was sweeping. The National Industrial Recovery Act devolved on the executive branch the power to formulate codes of fair competition for all industry in order to promote the policy of this title. The policy was to eliminate unfair competitive practices, to promote the fullest possible utilization of the present productive capacity of industries, . . . and otherwise to rehabilitate industry....105 Though much of the opinion is written in terms of the failure of these policy statements to provide meaningful standards, the Court was also concerned with the delegation’s vast scope – the virtually unfettered discretion conferred on the President of enacting laws for the government of trade and industry throughout the country.106chanrobles-red
102 293 U.S. 388 (1935).
103 The Court, in the view of many observers, was influenced heavily by the fact that the President’s orders were nowhere published and notice of regulations bearing criminal penalties for their violations was spotty at best. Cf. E. CORWIN, THE PRESIDENT—OFFICE AND POWERS 1787–1957 394–95 (4th ed. 1958). The result of the Government’s discomfiture in Court was enactment of the Federal Register Act, 49 Stat. 500 (1935), 44 U.S.C. § 301, providing for publication of Executive Orders and agency regulations in the daily Federal Register.
104 295 U.S. 495 (1935).
105 48 Stat. 195 (1933), Tit. I, § 1.
106 295 U.S. at 541–542. A delegation of narrower scope led to a different result in Fahey v. Mallonee, 332 U.S. 245, 250 (1947), the Court finding explicit standards unnecessary because [t]he provisions are regulatory and deal with but one enterprise, banking, the problems of which are well known and the authorized remedies as equally well known. A discretion to make regulations to guide supervisory action in such matters may be constitutionally permissible while it might not be allowable to authorize creation of new crimes in uncharted fields. The Court has recently explained that the degree of agency discretion that is acceptable varies according to the scope of the power congressionally conferred. Whitman v. American Trucking Ass’ns, 531 U.S. 457, 475 (2001) (Congress need not provide any direction to EPA in defining country elevators, but must provide substantial guidance on setting air standards that affect the entire national economy).
Typically the Court looks to the entire statute to determine whether there is an intelligible standard to guide administrators, and a statute’s declaration of policies or statement of purposes can provide the necessary guidance. If a statute’s declared policies are not open-ended, then a delegation of authority to implement those policies can be upheld. For example, in United States v. Rock Royal Co-operatives,107 the Court contrasted the National Industrial Recovery Act’s statement of policy, couched in most general terms and found lacking in Schechter, with the narrower policy that an agricultural marketing law directed the Secretary of Agriculture to implement.108 Similarly, the Court found ascertainable standards in the Emergency Price Control Act’s conferral of authority to set prices for commodities if their prices had risen in a manner inconsistent with the purposes of this Act.109
The Court has been notably successful in finding standards that are constitutionally adequate. Standards have been ascertained to exist in such formulations as just and reasonable,110 public interest,111 public convenience, interest, or necessity,112 unfair methods of competition,113 and requisite to protect the public health [with] an adequate margin of safety.114 Thus, in National Broadcasting Co. v. United States,115 the Court found that the discretion conferred on the Federal Communications Commission to license broadcasting stations to promote the public interest, convenience, or necessity conveyed a standard as complete as the complicated factors for judgment in such a field of delegated authority permit.116 Yet the regulations upheld were directed to the contractual relations between networks and stations and were designed to reduce the effect of monopoly in the industry, a policy on which the statute was silent.117 When in the Economic Stabilization Act of 1970, Congress authorized the President to issue such orders and regulations as he may deem appropriate to stabilize prices, rents, wages, and salaries, and the President responded by imposing broad national controls, the lower court decision sustaining the action was not even appealed to the Supreme Court.118 Explicit standards are not even required in all situations, the Court having found standards reasonably implicit in a delegation to the Federal Home Loan Bank Board to regulate banking associations.119chanrobles-red
107 307 U.S. 533 (1939).
108 307 U.S. at 575. Other guidance in the marketing law limited the terms of implementing orders and specified the covered commodities.
109 Yakus v. United States, 321 U.S. 414 (1944) (the principal purpose was to control wartime inflation, and the administrator was directed to give due consideration to a specified pre-war base period).
110 Tagg Bros. & Moorhead v. United States, 280 U.S. 420 (1930).
111 New York Central Securities Corp. v. United States, 287 U.S. 12 (1932).
112 Federal Radio Comm’n v. Nelson Bros. Bond & Mortgage Co., 289 U.S. 266 (1933).
113 FTC v. Gratz, 253 U.S. 421 (1920).
114 Whitman v. American Trucking Ass’ns, 531 U.S. 547 (2001).
115 319 U.S. 190 (1943).
116 319 U.S. at 216.
117 Similarly, the promulgation by the FCC of rules creating a fairness doctrine and a right to reply rule has been sustained, Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969), as well as a rule requiring the carrying of anti-smoking commercials. Banzhaf v. FCC, 405 F.2d 1082 (D.C. Cir. 1968), cert. denied sub nom. Tobacco Institute v. FCC, 396 U.S. 842 (1969).
118 Amalgamated Meat Cutters & Butcher Workmen v. Connally, 337 F. Supp. 737 (D.D.C. 1971). The three-judge court relied principally on Yakus.
The Court has recently emphatically rejected the idea that administrative implementation of a congressional enactment may provide the intelligible standard necessary to uphold a delegation. The Court’s decision in Lichter v. United States120 could be read as approving of a bootstrap theory, the Court in that case having upheld the validity of a delegation of authority to recover excessive profits as applied to profits earned prior to Congress’s incorporation into the statute of the administrative interpretation.121 In Whitman v. American Trucking Associations,122 however, the Court asserted that Lichter mentioned agency regulations only because a subsequent Congress had incorporated the regulations into a revised version of the statute.123 We have never suggested that an agency can cure an unlawful delegation of legislative power by adopting in its discretion a limiting construction . . . ,124 the Court concluded.
120 334 U.S. 742 (1948).
121 In upholding the delegation as applied to the pre-incorporation administrative definition, the Court explained that [t]he statutory term ‘excessive profits,’ in its context, was a sufficient expression of legislative policy and standards to render it constitutional. 334 U.S. at 783. The excessive profits standard, prior to defini
tion, was contained in Tit. 8 of the Act of October 21, 1942, 56 Stat. 798, 982. The administrative definition was added by Tit. 7 of the Act of February 25, 1944, 58 Stat. 21, 78.
122 531 U.S. 547 (2001).
123 531 U.S. at 472.
Even in sweeping regulatory schemes that affect the entire economy, the Court has never demanded . . . that statutes provide a ‘determinate criterion’ for saying ‘how much [of the regulated harm] is too much.’125 Thus Congress need not quantify how imminent is too imminent, how necessary is necessary enough, how hazardous is too hazardous, or how much profit is excess. Rather, discretion to make such determinations may be conferred on administrative agencies.126
While Congress must ordinarily provide some guidance that indicates broad policy objectives, there is no general prohibition on delegating authority that includes the exercise of policy judgment. In Mistretta v. United States,127 the Court approved congressional delegations to the Sentencing Commission, an independent agency in the judicial branch, to develop and promulgate guidelines binding federal judges and cabining their discretion in sentencing criminal defendants. Although the Court enumerated the standards Congress had provided, it admitted that significant discretion existed with respect to making policy judgments about the relative severity of different crimes and the relative weight of the characteristics of offenders that are to be considered, and stated forth-rightly that delegations may carry with them the need to exercise judgment on matters of policy.128 A number of cases illustrate the point. Thus, the Court has upheld complex economic regulations of industries in instances in which the agencies had first denied possession of such power, had unsuccessfully sought authorization from Congress, and had finally acted without the requested congressional guidance.129 The Court has also recognized that when Administrations change, new officials may have sufficient discretion under governing statutes to change or even reverse agency policies.130chanrobles-red
126 Whitman, 531 U.S. at 475-76.
127 488 U.S. 361 (1989).
128 488 U.S. at 378.
130 Chevron, U.S.A. v. NRDC, 467 U.S. 837, 842–45, 865–66 (1984) ([A]n agency to which Congress has delegated policymaking responsibilities may, within the limits of that delegation, properly rely upon the incumbent administration’s views of wise policy to inform its judgments. Id. at 865). See also Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Ins. Co., 463 U.S. 29, 42–44, 46–48, 51–57 (1983) (recognizing agency could have reversed its policy but finding reasons not supported on record).
It seems therefore reasonably clear that the Court does not really require much in the way of standards from Congress. The minimum which the Court usually insists on is that Congress employ a delegation which sufficiently marks the field within which the Administrator is to act so that it may be known whether he has kept within it in compliance with the legislative will.131 Where the congressional standards are combined with requirements of notice and hearing and statements of findings and considerations by the administrators, so that judicial review under due process standards is possible, the constitutional requirements of delegation have been fulfilled.132 This requirement may be met through the provisions of the Administrative Procedure Act,133 but where that Act is inapplicable or where the Court sees the necessity for exceeding its provisions, due process can supply the safeguards of required hearing, notice, supporting statements, and the like.134
Preemptive Reach of Delegated Authority.—In exercising a delegated power the President or another officer may effectively suspend or rescind a law passed by Congress, or may preempt state law. A rule or regulation properly promulgated under authority received from Congress is law, and under the supremacy clause of the Constitution can preempt state law.135 Similarly, a valid regulation can supersede a federal statute. Early cases sustained contingency legislation giving the President power, upon the finding of certain facts, to revive or suspend a law,136 and the President’s power to raise or lower tariff rates equipped him to alter statutory law.137 The Court in Opp Cotton Mills v. Administrator138 upheld Congress’ decision to delegate to the Wage and Hour Administrator of the Labor Department the authority to establish a minimum wage in particular industries greater than the statutory minimum but no higher than a prescribed figure. Congress has not often expressly addressed the issue of repeals or supersessions, but in authorizing the Supreme Court to promulgate rules of civil and criminal procedure and of evidence it directed that such rules supersede previously enacted statutes with which they conflict.139chanrobles-red
132 Yakus v. United States, 321 U.S. 414, 426; Skinner v. Mid-America Pipeline Co., 490 U.S. 212, 218 (1989); American Light & Power Co. v. SEC, 329 U.S. 90, 107, 108 (1946); Opp Cotton Mills v. Administrator, 312 U.S. 126, 144 (1941). It should be remembered that the Court has renounced strict review of economic regulation wholly through legislative enactment, forsaking substantive due process, so that review of the exercise of delegated power by the same relaxed standard forwards a consistent policy. E.g., Ferguson v. Skrupa, 372 U.S. 726 (1963); Williamson v. Lee Optical Co., 348 U.S. 483 (1955).
133 Act of June 11, 1946, 60 Stat. 237, 5 U.S.C. §§ 551–559. In NLRB v. Wyman-Gordon Co., 394 U.S. 759 (1969), six Justices agreed that a Board proceeding had been in fact rule-making and not adjudication and that the APA should have been complied with. The Board won the particular case, however, because of a coalescence of divergent views of the Justices, but the Board has since reversed a policy of not resorting to formal rule-making.
136 E.g., The Brig Aurora, 11 U.S. (7 Cr.) 382 (1813).
138 312 U.S. 126 (1941).
139 See 28 U.S.C. § 2072. In Davis v. United States, 411 U.S. 233, 241 (1973), the Court referred in passing to the supersession of statutes without evincing any doubts about the validity of the results. When Congress amended the Rules Enabling Acts in the 100th Congress, P.L. 100–702, 102 Stat. 4642, 4648, amending 28 U.S.C. § 2072, the House would have altered supersession, but the Senate disagreed, the House acquiesced, and the old provision remained. See H.R. 4807, H. Rep. No. 100–889, 100th Cong., 2d sess. (1988), 27–29; 134 CONG REC. 23573–84 (1988), id. at 31051–52 (Sen. Heflin); id. at 31872 (Rep. Kastenmeier).
Delegations to the President in Areas of Shared Authority
Foreign Affairs.—That the delegation of discretion in dealing with foreign relations stands upon a different footing than the transfer of authority to regulate domestic concerns was asserted in United States v. Curtiss-Wright Corporation.140 There the Court upheld a joint resolution of Congress making it unlawful to sell arms to certain warring countries upon certain findings by the President, a typically contingent type of delegation. But Justice Sutherland for the Court proclaimed that the President is largely free of the constitutional constraints imposed by the nondelegation doctrine when he acts in foreign affairs.141 Sixty years later, the Court, relying on Curtiss-Wright, reinforced such a distinction in a case involving the President’s authority over military justice.142
Whether or not the President is the sole organ of the nation in its foreign relations, as asserted in Curtiss-Wright,143 a lesser standard of delegation is applied in areas of power shared by the President and Congress.
141 299 U.S. at 319–22. For a particularly strong, recent assertion of the point, see Haig v. Agee, 453 U.S. 280, 291–92 (1981). This view also informs the Court’s analysis in Dames & Moore v. Regan, 453 U.S. 654 (1981). See also United States v. Chemical Foundation, 272 U.S. 1 (1926) (Trading With Enemy Act delegation to dispose of seized enemy property).
143 299 U.S. at 319.
Military.—Superintendence of the military is another area in which shared power with the President affects delegation doctrine. The Court in Loving v. United States144 approved a virtually standardless delegation to the President.
Article 118 of the Uniform Code of Military Justice (UCMJ)145 provides for the death penalty for premeditated murder and felony murder for persons subject to the Act, but the statute does not com-port with the Court’s capital punishment jurisdiction, which requires the death sentence to be cabined by standards so that the sentencing authority must narrow the class of convicted persons to be so sentenced and must justify the individual imposition of the sentence.146 However, the President in 1984 had promulgated standards that purported to supply the constitutional validity the UCMJ needed.147
The Court in Loving held that Congress could delegate to the President the authority to prescribe standards for the imposition of the death penalty – Congress’ power under Article I, § 8, cl. 14, is not exclusive – and that Congress had done so in the UCMJ by providing that the punishment imposed by a court-martial may not exceed such limits as the President may prescribe.148 Acknowledging that a delegation must contain some intelligible principle to guide the recipient of the delegation, the Court nonetheless held this not to be true when the delegation was made to the President in his role as Commander-in-Chief. The same limitations on delegation do not apply if the entity authorized to exercise delegated authority itself possesses independent authority over the subject matter. The President’s responsibilities as Commander-in-Chief require him to superintend the military, including the courts-martial, and thus the delegated duty is interlinked with duties already assigned the President by the Constitution.149chanrobles-red
144 517 U.S. 748 (1996).
145 10 U.S.C. §§ 918(1), (4).
146 The Court assumed the applicability of Furman v. Georgia, 408 U.S. 238 (1972), and its progeny, to the military, 517 U.S. at 755–56, a point on which Justice Thomas disagreed, id. at 777.
147 Rule for Courts-Martial; see 517 U.S. at 754.
148 10 U.S.C. §§ 818, 836(a), 856.
149 517 U.S. at 771–74. See also United States v. Mazurie, 419 U.S. 544, 556-57 (1974) (limits on delegation are less stringent when delegation is made to an Indian tribe that can exercise independent sovereign authority over the subject matter).
Delegations to States and to Private Entities
Delegations to the States.—Beginning in the Nation’s early years, Congress has enacted hundreds of statutes that contained provisions authorizing state officers to enforce and execute federal laws.150 Challenges to the practice have been uniformly rejected. While the Court early expressed its doubt that Congress could compel state officers to act, it entertained no such thoughts about the propriety of authorizing them to act if they chose.151 When, in the Selective Draft Law Cases,152 the contention was made that the act was invalid because of its delegations of duties to state officers, the argument was rejected as too wanting in merit to require further notice. Congress continues to empower state officers to act.153 Presidents who have objected have done so not on delegation grounds, but rather on the basis of the Appointments Clause.154
Delegations to Private Entities.—Statutory delegations to private persons in the form of contingency legislation have passed Court tests. Thus, statutes providing that restrictions upon the production or marketing of agricultural commodities are to become operative only upon a favorable vote by a prescribed majority of those persons affected have been upheld.155 The rationale of the Court is that such a provision does not involve any delegation of legislative authority, since Congress has merely placed a restriction upon its own regulation by withholding its operation unless it is approved in a referendum.156
Statutes that have given private entities actual regulatory power, rather than merely made regulation contingent on their approval, have also been upheld. The Court upheld a statute that delegated to the American Railway Association, a trade group, the authority to determine the standard height of draw bars for freight cars and to certify the figure to the Interstate Commerce Commission, which was required to accept it.157 The Court simply cited Buttfield v. Stranahan,158 in which it had sustained a delegation to the Secretary of the Treasury to promulgate minimum standards of quality and purity for imported tea, as a case completely in point and resolving the issue without need of further consideration.159 Similarly, the Court had enforced statutes that gave legal effect to local customs of miners with respect to claims on public lands.160chanrobles-red
150 See Warren, Federal Criminal Laws and the State Courts, 38 HARV. L. REV. 545 (1925); Holcomb, The States as Agents of the Nation, 3 SELECTED ESSAYS ON CONSTITUTIONAL LAW 1187 (1938).
151 Prigg v. Pennsylvania, 41 U.S. (16 Pet.) 539 (1842) (duty to deliver fugitive slave); Kentucky v. Dennison, 65 U.S. (24 How.) 66 (1861) (holding that Congress could not compel a Governor to extradite a fugitive). Doubts over Congress’s power to compel extradition were not definitively removed until Puerto Rico v. Branstad, 483 U.S. 219 (1987), in which the Court overruled Dennison.
153 E.g., P.L. 94–435, title III, 90 Stat. 1394, 15 U.S.C. § 15c (state attorneys general may bring antitrust parens patriae actions); Medical Waste Tracking Act, P.L. 100–582, 102 Stat. 2955, 42 U.S.C. § 6992f (States may impose civil and possibly criminal penalties against violators of the law).
154 See 24 Weekly Comp. of Pres. Docs. 1418 (1988) (President Reagan). The only judicial challenge to such a practice resulted in a rebuff to the presidential argument. Seattle Master Builders Ass’n v. Pacific N.W. Elec. Power Council, 786 F.2d 1359 (9th Cir. 1986), cert. denied, 479 U.S. 1059 (1987).
155 Currin v. Wallace, 306 U.S. 1 (1939); United States v. Rock Royal Co-operative, 307 U.S. 533, 577 (1939); Wickard v. Filburn, 317 U.S. 111, 115–116 (1942); United States v. Frame, 885 F.2d 1119 (3d Cir. 1989), cert. den., 493 U.S. 1094 (1990).
157 St. Louis, Iron Mt. & So. Ry. v. Taylor, 210 U.S. 281 (1908).
158 192 U.S. 470 (1904).
159 210 U.S. at 287.
The Court has struck down delegations to private entities, but not solely because they were to private entities. The Schechter case condemned the involvement of private trade groups in the drawing up of binding codes of competition in conjunction with governmental agencies, but the Court’s principal objection was to the statute’s lack of adequate standards.161 In Carter v. Carter Coal Co.,162 the Court struck down the Bituminous Coal Conservation Act in part because the statute penalized persons who failed to observe minimum wage and maximum hour regulations drawn up by prescribed majorities of coal producers and coal employees. But the problem for the Court apparently was not so much that the statute delegated to private entities as that it delegated to private entities whose interests were adverse to the interests of those regulated, thereby denying the latter due process.163 And several later cases have upheld delegations to private entities.164chanrobles-red
161 A. L. A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 537 (1935). In two subsequent cases, the Court referred to Schechter as having struck down a delegation for its lack of standards. Mistretta v. United States, 488 U.S. 361, 373 n.7 (1989); Whitman v. American Trucking Ass’ns, 531 U.S. 457, 474 (2001).
163 One person may not be entrusted with the power to regulate the business of another, and especially of a competitor. 298 U.S. at 311.
164 See, e.g., Schweiker v. McClure, 456 U.S. 188 (1992) (adjudication of Medicare claims, without right of appeal, by hearing officer appointed by private insurance carrier upheld under due process challenge); Association of Amer. Physicians & Surgeons v. Weinberger, 395 F. Supp. 125 (N.D. Ill.) (three-judge court) (delegation to Professional Standards Review Organization), aff’d per curiam, 423 U.S. 975 (1975); Noblecraft Industries v. Secretary of Labor, 614 F.2d 199 (9th Cir. 1980) (Secretary authorized to adopt interim OSHA standards produced by private organization). Executive Branch objections to these kinds of delegations have involved appointments clause arguments rather than delegation issues per se.
Even though the Court has upheld some private delegations by reference to cases involving delegations to public agencies, some uncertainty remains as to whether identical standards apply. The Schechter Court contrasted the National Industrial Recovery Act’s broad and virtually standardless delegation to the President, assisted by private trade groups,165 with other broad delegations of authority to administrative agencies, characterized by the Court as bodies of experts required to act upon notice and hearing, and further limited by the requirement that binding orders must be supported by findings of fact which in turn are sustained by evidence.166 The absence of these procedural protections, designed to ensure fairness – as well as the possible absence of impartiality identified in Carter Coal– could be cited to support closer scrutiny of private delegations. While the Court has emphasized the importance of administrative procedures in upholding broad delegations to administrative agencies,167 it has not, since Schechter and Carter Coal, relied on the distinction to strike down a private delegation.
Particular Subjects or Concerns – Closer Scrutiny or Uniform Standard?
The Court has strongly implied that the same principles govern the validity of a delegation regardless of the subject matter of the delegation. [A] constitutional power implies a power of delegation of authority under it sufficient to effect its purposes.168 Holding that the delegation of discretionary authority under Congress’ taxing power is subject to no constitutional scrutiny greater than that we have applied to other nondelegation challenges, the Court explained in Skinner v. Mid-America Pipeline Company169 that there was nothing in the placement of the Taxing Clause in Article I, § 8 that would distinguish it, for purposes of delegation, from the other powers enumerated in that clause.170 Thus, the test in the taxing area is the same as for other areas – whether the statute has provided the administrative agency with standards to guide its actions in such a way that a court can determine whether the congressional policy has been followed.
165 The Act conferred authority on the President to approve the codes of competition, either as proposed by the appropriate trade group, or with conditions that he added. Thus the principal delegation was to the President, with the private trade groups being delegated only recommendatory authority. 295 U.S. at 538-39.
166 295 U.S. at 539.
169 490 U.S. 212, 223 (1989). In National Cable Television Ass’n v. United States, 415 U.S. 336, 342 (1974), and FPC v. New England Power Co., 415 U.S. 345 (1974), the Court had appeared to suggest that delegation of the taxing power would be fraught with constitutional difficulties. How this conclusion could have been thought viable after the many cases sustaining delegations to fix tariff rates, which are in fact and law taxes, J. W. Hampton, Jr. & Co. v. United States, 276 U.S. 394 (1928); Field v. Clark, 143 U.S. 649 (1892); and see FEA v. Algonquin SNG, Inc., 426 U.S. 548 (1976) (delegation to President to raise license fees on imports when necessary to protect national security), is difficult to discern. Nor should doubt exist respecting the appropriations power. See Synar v. United States, 626 F. Supp. 1374, 1385–86 (D.D.C.) (three-judge court), aff’d on other grounds sub nom. Bowsher v. Synar, 478 U.S. 714 (1986).
This does not mean that Congress may delegate its power to determine whether taxes should be imposed. What was upheld in Skinner was delegation of authority to the Secretary of Transportation to collect pipeline safety user fees for users of natural gas and hazardous liquid pipelines. Multiple restrictions placed on the Secretary’s discretion left no doubt that the constitutional requirement of an intelligible standard had been met. Cases involving the power to impose criminal penalties, described below, further illustrate the difference between delegating the underlying power to set basic policy – whether it be the decision to impose taxes or the decision to declare that certain activities are crimes – and the authority to exercise discretion in administering the policy.
Crime and Punishment.—The Court has confessed that its cases are not entirely clear as to whether more specific guidance is in fact required for delegations relating to the imposition of criminal sanctions.171 It is clear, however, that some essence of the power to define crimes and set a range of punishments is not delegable, but must be exercised by Congress. This conclusion derives in part from the time-honored principle that penal statutes are to be strictly construed, and that no one should be subjected to a penalty unless the words of the statute plainly impose it.172 Both
Schechter173 and Panama Refining174 – the only two cases in which the Court has invalidated delegations – involved broad delegations of power to make federal crimes of acts that never had been such before.175 Thus, Congress must provide by statute that violation of the statute’s terms – or of valid regulations issued pursuant thereto – shall constitute a crime, and the statute must also specify a permissible range of penalties. Punishment in addition to that authorized in the statute may not be imposed by administrative action.176chanrobles-red
170 490 U.S. at 221. Nor is there basis for distinguishing the other powers enumerated in § 8. See, e.g., Loving v. United States, 517 U.S. 748 (1996). But see Touby v. United States, 500 U.S. 160, 166 (1991) (it is unclear whether a higher standard applies to delegations of authority to issue regulations that contemplate criminal sanctions), discussed in the next section.
173 A. L. A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935).
174 Panama Refining Co. v. Ryan, 293 U.S. 388 (1935).
176 L. P. Steuart & Bro. v. Bowles, 322 U.S. 398, 404 (1944) ([I]t is for Congress to prescribe the penalties for the laws which it writes. It would transcend both the judicial and the administrative function to make additions to those which Congress has placed behind a statute).
However, once Congress has exercised its power to declare certain acts criminal, and has set a range of punishment for violations, authority to flesh out the details may be delegated. Congress may provide that violation of valid administrative regulations shall be punished as a crime.177 For example, the Court has upheld a delegation of authority to classify drugs as controlled substances, and thereby to trigger imposition of criminal penalties, set by statute, that vary according to the level of a drug’s classification by the Attorney General.178
Congress may also confer on administrators authority to prescribe criteria for ascertaining an appropriate sentence within the range between the maximum and minimum penalties that are set by statute. The Court upheld Congress’s conferral of significant discretion on the Sentencing Commission to set binding sentencing guidelines establishing a range of determinate sentences for all categories of federal offenses and defendants.179 Although the Commission was given significant discretionary authority to determine the relative severity of federal crimes, . . . assess the relative weight of the offender characteristics listed by Congress, . . . to determine which crimes have been punished too leniently and which too severely, [and] which types of criminals are to be considered similar, Congress also gave the Commission extensive guidance in the Act, and did not confer authority to create new crimes or to enact a federal death penalty for any offense.180chanrobles-red
177 United States v. Grimaud, 220 U.S. 506 (1911). The Forest Reserve Act at issue in Grimaud clearly provided for punishment for violation of rules and regulations of the Secretary. The Court in Grimaud distinguished United States v. Eaton, 144 U.S. 677 (1892), which had held that authority to punish for violation of a regulation was lacking in more general language authorizing punishment for failure to do what was required by law. 220 U.S. at 519. Extension of the principle that penal statutes should be strictly construed requires that the prohibited acts be clearly identified in the regulation. M. Kraus & Bros. v. United States, 327 U.S. 614, 621 (1946). The Court summarized these cases in Loving v. United States, 517 U.S. 748 (1996), drawing the conclusion that there is no absolute rule . . . against Congress’ delegation of authority to define criminal punishments.
178 Touby v. United States, 500 U.S. 160 (1991).
179 Mistretta v. United States, 488 U.S. 361 (1989)
180 488 U.S. at 377-78. As for every other offense within the Commission’s jurisdiction, the Commission could include the death penalty within the guidelines only if that punishment was authorized in the first instance by Congress and only if such inclusion comported with the substantial guidance Congress gave the Commission in fulfilling its assignments. Id. at 378 n.11.
Delegation and Individual Liberties.—It has been argued in separate opinions by some Justices that delegations by Congress of power to affect the exercise of fundamental freedoms by citizens must be closely scrutinized to require the exercise of a congressional judgment about meaningful standards.181 The only pronouncement in a majority opinion, however, is that even with regard to the regulation of liberty the standards of the delegation must be adequate to pass scrutiny by the accepted tests.182 The standard practice of the Court has been to interpret the delegation narrowly so as to avoid constitutional problems.183
Perhaps refining the delegation doctrine, at least in cases where Fifth Amendment due process interests are implicated, the Court held that a government agency charged with the efficient administration of the executive branch could not assert the broader interests that Congress or the President might have in barring lawfully resident aliens from government employment. The agency could assert only those interests Congress charged it with promoting, and if the action could be justified by other interests, the office with responsibility for promoting those interests must take the action.184chanrobles-red
181 United States v. Robel, 389 U.S. 258, 269 (1967) (Justice Brennan concurring). The view was specifically rejected by Justices White and Harlan in dissent, id. at 288–289, and ignored by the majority.
183 Kent v. Dulles, 357 U.S. 116 (1958); Schneider v. Smith, 390 U.S. 17 (1968); Greene v. McElroy, 360 U.S. 474, 506-08 (1959) (Court will not follow traditional principles of congressional acquiescence in administrative interpretation to infer a delegation of authority to impose an industrial security clearance program that lacks the safeguards of due process). More recently, the Court has eschewed even this limited mode of construction. Haig v. Agee, 453 U. S. 280 (1981).
184 Hampton v. Mow Sun Wong, 426 U.S. 88 (1976) (5–to–4 decision). The regulation was reissued by the President, E. O. 11935, 3 C.F.R. 146 (1976), reprinted in 5 U.S.C. § 3301 (app.), and sustained in Vergara v. Hampton, 581 F. 2d 1281 (7th Cir. 1978).